Osgoode Hall Law Journal: 24.1 (1986):121-139.
During the fifteenth century, common law courts began to allow plaintiffs to bring actions for breach of informal promises under the trespassory action of assumpsit. The royal courts built evidentiary safeguards into this new use of assumpsit. This article analyzes how the courts’ concern for proof of informal promises had an impact on the shape that the law of contract took on.
Twentieth century common law lawyers know that a plaintiff has a remedy for the breach of a promise to do something in the future. Such a promise was not actionable until the early Renaissance period in England. The common law courts of the Middle Ages resisted adopting this modem theory because of the archaic truth-seeking devices then available. The fifteenth century was a pivotal period in the development of a modem theory of contract.
Contract law in the year 1400 was clinging to unworkable archaic remedies. A common law judge sitting in the year 1400 was comfortable with permitting an action for breach of a well-documented promise to be submitted to a mode of proof then available; but breaches of informal promises were barred from going to trial as those modes of proof were distrusted by the judiciary. The depreciation in the value of money and the manner in which business was transacted necessitated the fashioning of exceptions to the traditionally strict documentary requirements of proof of transactions in order to accommodate the changing commercial world outside Westminster Hall.